STATE OF NEW JERSEY v. ALDWIN SCOTT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6162-03T56162-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALDWIN SCOTT,

Defendant-Appellant.

__________________________________________________________

 

Submitted October 3, 2005 - Decided November 18, 2005

Before Judges Coburn and S.L. Reisner

On appeal from the Superior Court of New Jersey,

Law Division, Union County, Indictment

No. 03-04-00321.

Michael B. Campagna, attorney for appellant

(Mr. Campagna, on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After losing his motion to suppress evidence seized pursuant to a search warrant, defendant pled guilty to second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2); and to third degree possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7. Following the imposition of sentence, defendant appealed on the ground that the trial judge erred in denying the suppression motion.

After carefully considering the record and briefs, we are satisfied that defendant's argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Moynihan in his thorough and well-reasoned oral opinion delivered on September 11, 2003. Nevertheless, we add the following comments:

Defendant argues, in essence, that the detective failed to adequately corroborate the information received from his informant. A search warrant is presumed to be valid, and the burden rests on defendant to prove its invalidity. State v. Sullivan, 169 N.J. 204, 211 (2001).

In Sullivan, the Court reviewed the validity of a search warrant issued pursuant to facts remarkably similar to the instant case. There, an informant of unproven reliability supplied to a detective with the Union County Prosecutor's Office Narcotics Strike Force a tip that the defendant was selling cocaine out of his apartment. The informant provided the detective with the first name and a general description of the defendant and identified the specific unit in which defendant was located and the phone number of that unit. To corroborate the informant's tip, the detective reviewed PSE&G records which verified that the telephone number supplied by the informant matched the number of the apartment and that the apartment's utilities had been activated prior to the date on which the informant stated the defendant had begun selling drugs from there. The detective also used the informant to complete two controlled drug buys at the apartment and, through lab tests, confirmed that the substance purchased during the buys was in fact cocaine.

The Court reversed the Appellate Division and held that "[w]hen coupled with the completion of [the controlled] buys, the corroboration described in the [detective's] affidavit formed a well-grounded basis to support the warrant." Id. at 216.

Here, Detective Schubert's affidavit in support of his warrant application closely resembles the one in Sullivan. Detective Schubert first outlined his qualifications, noting that he has worked for the Union County Police Department since February 1990 during which time he conducted "several thousand preliminary investigations which included . . . narcotics and other such crimes." At the time of defendant's arrest, Detective Schubert had been working with the Union County Narcotics Strike Force for a little over one month, where he conducted "investigations leading to the arrest and prosecution of person[s] involved in the illegal possession and distribution of controlled dangerous substances." He had completed basic police academy training as well as a number of police-related courses including seminars on arrest, search and seizure, crack cocaine and street level drugs, highway interdiction, street gangs, and date rape and club drugs. He also "participated in several narcotics investigations, including surveillance operations" and is "familiar with the manner in which controlled dangerous substances are used, packaged and distributed."

Detective Schubert then explained his relationship with his confidential informant, Informant A. He stated that Informant A told him that defendant, who was also known as "Black Al," was involved in the illegal distribution of cocaine from his residence. Informant A provided Detective Schubert with the exact location of defendant's residence, 363 West End Avenue, Apartment 303, Elizabeth, New Jersey, and a general description of defendant: "[Defendant] is described as being a Black male, approximately 29 years of age, approximately 5'11" in height, approximately 200 pounds in weight." Informant A also advised the detective that defendant used a "1 999 BMW 323, color silver[,] New Jersey Registration MTR34R, to deliver controlled substances to potential customers."

Detective Schubert admitted that he had not yet tested the reliability of Informant A, but stated that he had corroborated the information through an independent investigation and that the information provided had led to a controlled buy.

During the week of June 25, 2002, Detective Schubert met with Informant A who told him that, over the prior month, "he/she has personally observed [defendant] conduct controlled dangerous substance transactions" from the West End apartment. The informant also stated that defendant "sells large quantities of cocaine including kilograms."

During the week of August 12, 2002, Detective Schubert met with Informant A and arranged to have the informant complete a controlled purchase of cocaine from defendant at the West End residence. Afterward, the detective submitted the substance purchased through the controlled buy to the Union County Prosecutor's Office Laboratory for testing, which came back positive for cocaine.

Detective Schubert also asserted that over the several weeks prior to the warrant application, he and other members of the Narcotics Strike Force had conducted "ride-by surveillances" of the West End apartment. They observed the silver BMW 323 parked at the apartment on at least one dozen occasions between July 25, 2002, and August 14, 2002. On three of those occasions, they observed defendant exiting the apartment and entering the vehicle. On August 9, 2002, the detective and two other officers observed defendant drive the vehicle to Harrison Avenue, pull over on the side of the road and wait for another car, which pulled alongside defendant's. One of the detectives drove by the two cars and observed the driver of the second car reach across the front seat and out the passenger window toward defendant who was likewise reaching his hand out the window of the BMW 323. Detective Schubert stated that the two "individuals appeared to be engaged in an exchange" after which both cars departed. Detective Schubert opined that "[b]ased upon his training and experience, and the information provided by Informant A," the detective had observed defendant engage in a narcotics transaction.

To further corroborate Informant A's information, Detective Schubert also reviewed records from the New Jersey DMV, the New Jersey State Police Criminal History Division and PSE&G. DMV records indicated that the car was registered to Jacquelin L. Aston, 324 Chestnut Place, Piscataway, New Jersey. Records from the Criminal History Division disclosed that defendant was twenty-nine years old and had been arrested on four prior occasions, three of which were on drug-related charges. PSE&G records revealed that service for the West End apartment was registered to defendant and had been since April 29, 2002.

An informant's tip must be analyzed under the totality of the circumstances. State v. Smith, 155 N.J. 83, 93 (1998), cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). Any deficiency in either the informant's veracity or basis of knowledge "may be compensated for . . . by a strong showing as to the other, or by some other indicia of reliability." Sullivan, supra, 169 N.J. at 212-13 (citation omitted) (internal quotations omitted). To that end, the reliability of the informant's tip may "be bolstered by a corroborative investigation." Id. at 213-14 (citation omitted) (internal quotations omitted).

Here, when viewed under the totality of the circumstances, Detective Schubert's warrant application provided a sufficient basis for the probable cause determination.

 
Affirmed.

(continued)

(continued)

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A-6162-03T5

November 18, 2005